State v. Weas
| Decision Date | 19 November 1999 |
| Docket Number | No. 82,843.,82,843. |
| Citation | 992 P.2d 221,26 Kan. App.2d 598 |
| Parties | STATE OF KANSAS, Appellant, v. MICHAEL JAMES WEAS, Appellee. |
| Court | Kansas Court of Appeals |
Jim A. Vanderbilt, county attorney, for appellant.
Michael C. Hayes, of Oskaloosa, for appellee.
Before RULON, P.J., PIERRON and KNUDSON, JJ.
The State brings this interlocutory appeal from the district court's order suppressing evidence obtained during a warrantless search of the defendant's residence. We have jurisdiction to hear this appeal under K.S.A. 22-3603. We reverse and remand because: (1) the police had probable cause to search with exigent circumstances that obviated the need to first obtain a search warrant; (2) alternatively, under an independent source analysis, the exclusionary rule should not be invoked.
The pertinent facts are as follows. At approximately 9 a.m. on October 25, 1998, the dispatcher at the Jefferson County Sheriff's Office received a 911 call of a possible sexual assault in the vicinity of Lake Perry. Deputy Boyer was requested to investigate. Boyer was assisted by Deputy Welch and Conservation Officer Purvis. Boyer and Purvis spoke to the alleged victim, who appeared to have been badly beaten. She was partially clothed, wearing only a jacket and jeans, both turned inside out. She told the officers that she had been kidnapped outside a bar in Lawrence, Kansas, the previous evening. Two men driving a small vehicle abducted her. She was forced into the vehicle and during the ride was beaten. The men threatened to kill her. She believed she lost consciousness. She woke the next morning in an unfamiliar house at Lake Perry. She had no idea where she was at that time. She ran out the front door of the house, leaving it unlocked. When fleeing, she did notice a man passed out in a bedroom of the house. She was able to obtain assistance at a nearby home and place the 911 call. She was unable to state with certainty whether she had been raped, but the officers realized rape was a strong possibility.
Welch and Purvis went to the home described by the victim. The officers noted a pickup truck on the premises consistent with what the victim had related. Purvis went to the back door, and Welch went to the front door. Purvis knocked on the back door that was locked, but there was no response. Welch did not testify as to whether he knocked at the front door, which was also locked. The officers believed there was probable cause that serious, violent crimes had occurred and to prevent the destruction of evidence and identify and apprehend the perpetrators, immediate entry into the house was necessary.
Officer Purvis went through an open window and opened the door for Welch. The officers searched the house for suspects. While searching, the officers saw in plain view drugs and paraphernalia at various locations within the house. After determining no one was in the house, the officers then sought and obtained a search warrant for the residence. Thereafter, the warrant was executed and evidence seized relating to drug violations and the sexual assault. Weas, the resident of the house, was charged with various drug violations. It is not clear whether Weas has been charged with any crimes against persons in Jefferson or Douglas Counties.
After hearing Weas' motion to suppress, the district court suppressed all of the physical evidence seized from the house. The trial judge reasoned that the initial search of Weas' residence without a warrant was unlawful and that the evidence subsequently seized under the search warrant was tainted by the initial illegality. The State contends the district court erred, contending: (1) exigent circumstances justified immediate entry into the house without a warrant, or (2) the independent source rule is applicable, or (3) the officers acted in good faith in seizing the evidence under a search warrant issued by the magistrate.
The controlling facts are undisputed; the question of whether to suppress becomes a question of law over which we exercise unlimited review. See State v. Anderson, 259 Kan. 16, 18, 910 P.2d 180 (1996).
Under the Fourth Amendment of the United States Constitution, searches conducted without warrants are per se unreasonable, subject only to a few specifically established and well-delineated exceptions. State v. Platten, 225 Kan. 764, 769, 594 P.2d 201 (1979). In this case, the State relies upon the exigent circumstances exception. This exception allows a warrantless search where there is probable cause for the search and exigent circumstances justify an immediate search. See 225 Kan. at 769. In our opinion, the uncontroverted facts of this case gave the officers persuasive evidence of probable cause to believe the victim was kidnapped, beaten, and sexually violated.
The question is whether exigent circumstances existed. In making this determination, the Platten court relied upon the nonexclusive list of factors set forth in United States v. Reed, 572 F.2d 412, 424 (2d Cir.),cert. denied 439 U.S. 913 (1978):
225 Kan. at 770.
That there were no material facts in dispute is apparent from the trial court's journal entry granting suppression. The trial court's central conclusions of law were:
The trial court's reasoning can be determined from bench comments made at the conclusion of the hearing. Those comments reinforce our belief that there were no disputed facts upon which the ultimate legal issue was decided. The trial court concluded there were no exigent circumstances to support a warrantless entry because the officers could have secured the perimeter of the residence and attempted to secure a search warrant; additionally, destruction of incriminating evidence by someone within the residence was unlikely.
We do not agree with the trial court's reasoning. Under the nonexclusive criteria noted in Reed, the action taken by the officers was objectively reasonable. The crime of kidnapping is a severity level 3 person felony with a presumptive sentence that includes incarceration. In addition, there is evidence the perpetrators threatened to kill the victim and did beat her. Although it is true that the victim did not relate to the officers that her attackers were armed, the serious nature of the alleged crimes would give rise to "an ever-present potential for exploding into violent confrontation." People v. Escudero, 23 Cal.3d 800, 811, 153 Cal. Rptr. 825, 592 P.2d 312 (1979). The officers had ample evidence of probable cause to believe one or more individuals who had committed these violent crimes were in the residence and would be alerted to detection and apprehension as a result of the victim's escape. Finally, the entry into the residence was during daylight hours and made peaceably. Another important factor noted in Platten is whether an immediate entry is necessary so that a perpetrator can be disabled from destroying or concealing evidence. In this case, the officers knew the perpetrators very probably were alerted by the victim's escape and given the opportunity could destroy physical and trace evidence. It is not unreasonable for the officers to believe hair, blood, and other bodily fluids could be washed off the body easily. We are convinced the officers rightfully were concerned about the potential for destruction of evidence if there was a delay to secure a search warrant.
We further note protection of evidence was not the only reason given for entering the house. The officers testified they also entered the house to identify and apprehend the suspects. The officers certainly had reason to believe one or more suspects were in the residence. The district court speculated no harm would have occurred had the officers secured the house to prevent the suspects from fleeing and waited for a search warrant. Again, we do not agree....
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